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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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Along with Holmes, other respected conservative Justices have rejected Justice Scalia's rigid view that the Bill of Rights is "a static document," to quote another phrase Justice Scalia used during his JTS lecture. One prominent example is Justice John Marshall Harlan, one of the most respected conservative jurists in modem history. 4 Yet, despite his deep judicial conservatism, Justice Harlan was the first exponent of an expansive interpretation of the Fourteenth Amendment's Due Process Clause as containing an implicit guarantee of personal privacy and autonomy in matters of sexuality and reproduction. Accordingly, in a 1961 dissent, Justice Harlan became the first Supreme Court Justice willing to strike down as unconstitutional a state law restricting contraception.

–  –  –

Not until four years later did a majority of Justices reach that conclusion in the landmark case of Griswold v. Connecticut. The unenumerated right of reproductive autonomy, which the conservative Justice Harlan first articulated, was of course the foundation for the Court's historic ruling invalidating restrictions on abortion in Roe v. Wade,57 a decision that Justice Scalia has strongly criticized and sought to overrule.58

In contrast with Justice Scalia's "static" concept of personal liberty, Justice Harlan enforced an evolving concept. He wrote:

Due process has not been reduced to any formula....

[T]hrough the course of this Court's decisions [due process] has represented the balance which our Nation, built upon... respect for the liberty of the individual, has struck between that liberty and the demands of organized society.... The balance is... struck by... having regard to... the traditions from...

which [this country] developed as well as the traditions from which it broke. That traditionis a living thing... [T]he full scope of the liberty guaranteed by the Due Process Clause...is a rational continuum which... includes a freedom from all substantial arbitrary impositions and purposeless restraints.... 59 As this passage makes clear, Justice Scalia's rigid, narrow notion of the role of tradition in constitutional interpretation is very different from the more flexible, evolving notion of tradition that has been enforced by other, leading conservative Justices.

I would now like to turn from interpretation of the Constitution in general to interpretation of the two specific constitutional provisions regarding religious liberty. Commonly called the "Establishment Clause" and the "Free Exercise Clause," these two provisions appear in the First Amendment and read as follows: "Congress

56. 381 U.S. 479 (1965).

57. 410 U.S. 113 (1973).

58. See Planned Parenthood v. Casey, 505 U.S. 833, 979, 1002 (1992) (Scalia, J., dissenting). In Casey, Scalia asserted that the "[s]tates may, if they wish, permit abortion-on-demand, but the Constitution does not require them to do so." Id. Scalia went on to end his dissent by stating that "[w]e should get out of this area [abortion], where we have no right to be, and where we do neither ourselves nor the country any good by remaining." Id. Scalia noted that his "views on this matter [were] unchanged from those [he] set forth in [his] separate opinions" in both Webster v. Reproductive Health Services, 492 U.S. 490 (1989) (Scalia, J., concurring in part and concurring in judgment) and Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (Scalia, J., concurring).

59. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (emphasis added).

442 FORDHAM URBAN LAW JOURNAL [Vol. XXIV shall make no law respecting an establishment of religion, or '60 prohibiting the free exercise thereof.

Il. Establishment Clause A. The Myth That the Courts Have Driven Religion from the Public Square As I explained earlier, the Establishment Clause is now facing a very strong attack from the extreme right wing. The Christian Coalition and its many Congressional allies have declared it an important goal to enact a constitutional amendment that would carve out an exception to the Establishment Clause to permit governmentsponsored prayer in public schools and other public places. 6 Proponents of such an amendment, which is endorsed by the Republican Party Platform, have misleadingly labeled it the "religious equality" amendment or the "religious liberty" amendment.62 Those inaccurate labels reflect one of the many myths and misconceptions that abound in the ongoing Establishment Clause debate: that students may not now pray in public schools, or-worse yet-that religion has been purged from the public schools altogether by the Establishment Clause and the Supreme Court's decisions enforcing it.63 When I recently debated Pat Robertson about the appropriate role of religion in public schools, he repeated this Big Lie over and over. 64 For example, he decried "the judicial disU.S. CONST. amend. I.

61. Cody Lowe, Goodlatte For Statute On PrayerAmendment Moving Slowly, RoANOKE TIMES & WORLD NEWS, July 29, 1996, at Cl (stating that the Christian Coalition and some other conservative Christian organizations continue to support a constitutional amendment related to prayer in public schools); John M. Swomley, Watch on the Right: Pat Robertson's Contract on America, THE HUMANIST, July 1, 1995, at 35 (noting that one Christian Coalition agenda point is called "a religious equality amendment" which if adopted, would change the United States from a secular to a religious nation, nullifying the First Amendment's Establishment Clause).

62. Amendments Threaten Right to Religious Freedom, THE BUFFALO NEWS, July 14, 1996, at 1OF (stating that "two constitutional amendments have been introduced in the 104th Congress that would virtually repeal the Establishment Clause" and that "[t]hese initiatives have been dubbed by their sponsors as the Religious Liberty Amendment and the Religious Equality Amendment."); R. Upton Nelson, Freedom from Religion, BANGOR DAILY NEWS, Aug. 3, 1995 (LEXIS, News Library, Arcnws file) (stating that "[a] 'Religious Equality Amendment' is being drafted to be introduced in the U.S. Congress. Under the guise of protecting religious speech, this proposed amendment would essentially gut the Establishment Clause of the First Amendment.").

63. See, e.g., M.G. "Pat" Robertson, Religion in the Classroom, 4 WM. & MARY BILL RTS. J. 595, 598 (1995).

64. Nadine Strossen, How Much God in the Schools? A Discussion of Religion's Role in the Classroom, 4 WM. & MARY BILL RTs. J. 607 (1995).

1997] 443


tortions which have forbidden little children to pray or read the Bible in school. '6 5 He also charged that the Court and civil libertarians have "misuse[d] the Constitution to exclude religion from the schools and the public square."66 Correspondingly, he declared that prayer should be "returned" to the public schools.

Ironically, Mr. Robertson gave a list of situations in which students' religious freedom was violated, he said, because of the schools' distorted view of the Supreme Court's rulings.68 He contended that the schools have an exaggerated sense of what the Court has said the Establishment Clause requires, and hence they prohibit the kind of individual, voluntary, non-school-endorsed religious expression that is both protected by the Free Speech Clause and not prohibited by the Establishment Clause. 69 Asserting that "these examples have become the norm,' 70 he accused the schools of engaging in a "religious cleansing that they believe has been mandated by the courts."' 71 But any such distorted view is fueled by the very kind of mischaracterization in which Mr. Robertson himself engaged. If schools do in fact believe that the courts have mandated "religious cleansing," this may well be because critics such as Mr. Robertson himself have told them so.

These assertions, though, are completely false. Consistent with the Establishment Clause's guiding principle of government neutrality toward religion, 72 the Supreme Court recognizes that individual students, as well as voluntarily constituted student groups,73 are free to pray in school, subject only to the same constraints that apply to all student expression.74 In short, they must not disrupt the education of other students.75 For example, while students may

65. Robertson, supra note 63, at 602.

66. Id. at 598.

67. Id. at 606.

68. Id. at 603.

69. Id.

70. Id.

71. Robertson, supra note 63, at 604.

72. See Edwards v. Aguillard, 482 U.S. 578 (1987); Wallace v. Jaffree, 472 U.S. 38 (1985); Stone v. Graham, 449 U.S. 39 (1980); Epperson v. Arkansas, 393 U.S. 97 (1968); School Dist. of Abington v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).

73. See Board of Educ. v. Mergens, 496 U.S. 226 (1990).

74. Id. at 247-53.

75. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 507-14 (1969) (holding that students' wearing of arm bands in protest of the Vietnam War was not disruptive and was within the protection of the First and Fourteenth Amendments); see also id. at 511 (stating that "the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and FORDHAM URBAN LAW JOURNAL [Vol. XXIV not pray at the top of their lungs in the middle of class, they may pray silently.

Moreover, the Supreme Court has expressly upheld students' rights to form religious clubs that meet in the public schools to engage in group prayer, Bible study, and other religious activities, so long as the school permits other student groups to meet on a nondiscriminatory basis.76 Furthermore, far from religion having been purged from the classroom, the Supreme Court has repeatedly held that it is completely constitutional and appropriate for schools to teach about religion, and its important role in such fields as history, art, and music, so long as it is discussed in a non-indoctrinating manner. 77 In short, schools may teach about religion; they simply may not preach religion. In the Supreme Court's felicitous phrase, "religious beliefs and... expression are too precious to be either '7 8 proscribed or prescribed by the State.

The only type of prayer that the Court has banned from the public schools is school-sponsoredprayer.79 In the graduation context, for example, students, parents, and/or religious leaders remain free to organize their own baccalaureate services, which may include organized group prayers, but they may not include prayers in the public schools' own ceremonies.

substantial interference with schoolwork or discipline, is not constitutionally permissible").

76. Mergens, 496 U.S. at 246.

77. See Edwards, 482 U.S. at 578; Wallace, 472 U.S. at 38; Stone, 449 U.S. at 42 (holding that the posting of the Ten Commandments served absolutely no educational function, such as where they "are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like"); Epperson, 393 U.S. at 97; Schempp, 374 U.S. at 225 (noting that "it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.");

Engel, 370 U.S. at 421; see also Strossen, supra note 64, at 618:

[Schools] may not disfavor religion... for example, by discriminatorily omitting its role in such fields as... to cite something very dear to my own heart, civil rights. Religion has played a critical role in historic human rights struggles throughout our history, including the abolition of slavery and racial apartheid. Eliminating discussion of and information about the critically important role of religion in our society is therefore not neutral, and hence violates the Establishment Clause.

78. Lee v. Weisman, 505 U.S. 577, 589 (1992).

79. See id. passim; Engel, 370 U.S. at 429-30; accord Mergens, 496 U.S. at 253 (holding that student prayer that was not school-sponsored did not violate the Establishment Clause).


1997] B. The Myth That Maintaining a Strict Separation Between Government and Religion Reflects Hostility Toward Religion The widespread misconceptions about what the Establishment Clause requires and how the Supreme Court has enforced that clause lead to another dangerous distortion in the debates on this issue: the mistaken view that support for a strict separation between government and religion evinces hostility toward religion.8 ° To the contrary, maintaining government neutrality toward religion is at least as important for preserving a sacred, holy concept of religion as it is for preserving a secular state. Therefore, some of the staunchest separationists, from our founders 81 on, have been some of our most religious citizens. Likewise, some of the most religiously devout Supreme Court Justices have been among the Court's staunchest guardians of a strict separation between religion and government. 82 In a 1989 decision in which the Court upheld an Establishment Clause challenge to a prominent religious display in a government building,83 Justice Blackmun (who has publicly acknowledged his Christian faith) 84 forcefully objected to the dissent's view that this ruling somehow evinced hostility toward religion. 85 Responding to this argument in the dissent, which Justice Kennedy authored and

in which Justice Scalia joined, Justice Blackmun wrote:

Although Justice Kennedy repeatedly accuses the Court of harboring a "latent hostility" or "callous indifference" toward religion, nothing could be further from the truth, and the

80. See generally Robertson, supra note 63. For a recent example, see Mary Ann Glendon, Religious Freedom and Common Sense, N.Y. TIMES, June 30, 1997 at All (describing Supreme Court opinions enforcing the Establishment Clause as reflecting an "ill-disguised hostility towards religion").

81. See MARK D. HowE, THE 6 (1965) (noting


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